Wednesday, October 14, 2009

On September 9, in his speech to a joint session of Congress, President Obama threw the Republicans a bone by mentioning medical tort reform. That's all it was, an ephemeral reference, that like so many of the President's words, were forgotten by the next news cycle. It went like this:

Now, finally, many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. (Applause.) Now -- there you go. There you go. Now, I don't believe malpractice reform is a silver bullet, but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. (Applause.) So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today. (Applause.)

There is no doubt that our health care costs are increased because physicians, nurses, hospitals, nursing homes, pharmaceutical companies, and medical equipment manufacturers have to insure against the potential of devastating legal judgements. Added to the direct costs of legal expenses are costs associated with defensive medicine, those diagnostic tests performed solely to protect the physician.

A few states, including Georgia and Mississippi, have passed tort reforms which cap non-economic and punitive damages. In those states, malpractice premiums have fallen by as much as 42 percent. It is also true that many of these reforms are being challenged as unconstitutional. And they may be.

But here is my simple question of the day: Why are Democrats so averse to capping liability damages, but so eager to cap everything else, from corporate profits to executive compensation to carbon emissions?

In an opinion column in today's San Francisco Examiner, James R. Copland answers my questions and gives us a peak into the future of medical tort reform. In short, it has no future.

It’s a myth to think that liability reform alone could cure the nation’s health care problems, but it is equally a myth to think it doesn’t matter. Unfortunately, because of the trial lawyers’ stranglehold on Congress, meaningful liability reform — this year — is simply wishful thinking.